Mr X and Department of Foreign Affairs and Trade

Whether the Department was justified in refusing an application made under section 9 of the FOI Act for the amendment of information contained in an Information Note on the Election Observation Roster on the ground that the information in question was not personal information relating to the applicant and was not incomplete, incorrect or misleading

6 February 2020

Background

The Department maintains a roster of volunteers willing and suitable to partake in overseas election observation missions. Volunteers are nominated as occasions arise to observation missions organised by either the European Union or the OSCE’s (Organisation for Security and Co-operation in Europe) Office for Democratic Institutions and Human Rights (OSCE-ODIHR). The current roster was mustered in January 2019.

In March 2019, the Department prepared an Information Note on the Election Observation Roster for the members of the Joint Committee on Foreign Affairs and Trade and Defence (“the Joint Committee”) and it subsequently published the Information Note on its website www.irishaid.ie. I understand that the Department subsequently published an amended version of the Information Note in May 2019. However, the amendments made have no bearing on the issues arising in this review.

Among other things, the Information Note contains details of the history of the election observation roster, the operation of the previous and current rosters, and the mustering of the current roster and the related appeals process. It also contains details of an issue relating to an application for reasonable accommodation on grounds of a disability in connection with the mustering of the current roster.

Specifically, the Information Note indicates that one applicant had requested, as part of an appeal, a reasonable accommodation on grounds of a disability and that the Department deemed the request inadmissible. It indicates that the applicant asserted that a request for a reasonable accommodation had been attached to his original application but that no such request was received at any stage while the application process was open. It says that the allegation that a reasonable accommodation had been sought is factually incorrect.

The applicant in this review is the applicant referred to in the Information Note. On 25 April 2019, he applied to the Department under section 9 of the FOI Act for the amendment of the Information Note. He argued that to state that his request for disability accommodation was not made is incomplete, false and misleading and should be deleted.

On 22 May 2019, the Department refused the application for amendment on the grounds that the applicant had not established that the Information Note contained personal information relating to him or provided any proof that the information at issue was incomplete, incorrect or misleading. The applicant sought an internal review of that decision on 4 June 2019, following which the Department affirmed its original decision. On 20 August 2019, the applicant sought a review by my Office of the Department’s decision.

I have now completed my review of the Department’s decision. In carrying out the review, I have had regard to the correspondence between the applicant and Department as described above and to the correspondence between my Office and both the applicant and the Department on the matter. I have also had regard to the contents of the record at issue.

Scope of the Review

In his correspondence with my Office, the applicant argued that the Information Note should be deleted in its entirety, or at the very least, substantial parts of it should be deleted. Indeed, much of his submission of 13 September 2019 to my Office is taken up with arguments as to why he considers various other parts of the Information Note to be incomplete, incorrect, or misleading.

However, my review is confined to a consideration of the decision taken by the Department on the application that was made to it. It is not possible for the applicant to widen the scope of his application for amendment at review stage. The application for amendment was clearly stated, as follows:

“To state that my request for disability accommodation was not made is incomplete, false and misleading, and should be deleted”.

I note that the Department identified that specific request for amendment in its decision on the application and that the applicant did not take issue with that approach in his application for an internal review of the Department’s refusal of the application.

Accordingly, this review is concerned solely with whether the Department was justified in refusing to amend the relevant information contained in the Information Note, namely that an applicant alleged that a request for a reasonable accommodation had been attached to his original application but that no such request was received at any stage while the application process was open.

Preliminary Matter

In his correspondence with my Office, the applicant has raised many concerns about the fairness of the process by which the Department selected applicants for inclusion on the election observation roster. I have no role in examining the appropriateness, or otherwise, of the process followed. My role is confined to reviewing the decision taken by the Department on the application for amendment of the record at issue, as described above.

Analysis and Findings

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by public bodies. The FOI Act is silent on the question of where the onus of proof lies when an application for the amendment of records is made. I take the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading, and that the standard of proof required is that of “the balance of probabilities”. It follows that an applicant seeking to exercise the right of amendment under section 9, must show me that the personal information at issue is, on the balance of probabilities, incomplete, incorrect or misleading.

Section 9 (2)(b) requires that an application “shall, in so far as is practicable…include appropriate information in support of the application”. I do not see my role as being to conduct my own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, I have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the public body, and I make a decision on that basis. Where an applicant fails to provide sufficient evidence to enable me to conclude that the information in a record is incomplete, incorrect or misleading, the record remains undisturbed, but this does not carry any judgement on my part that the record is, in fact, complete, correct and not misleading.

It is important to note that the right of amendment is confined to the amendment of incomplete, incorrect or misleading personal information contained in the record. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that, either-

would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

is held by an FOI body on the understanding that it would be treated by that body as confidential

Fourteen specific categories of information are included as personal information without prejudice to the generality of the foregoing definition.

It is clear from the definition that a record does not have to specifically name a particular individual for the information in the record to comprise personal information relating to that individual. It is sufficient that the individual is identifiable from the information in question.

In this case, the Department argued that the applicant had not established that the Information Note contained personal information relating to him. Therefore, before I can examine whether or not the applicant has shown that the information at issue is, on the balance of probabilities, incomplete, incorrect or misleading, I must first consider whether it is personal information relating to him as an identifiable individual.

In its submissions to my Office, the Department said that the Joint Committee requested a background note on the roster mustering process on 12 February 2019. It said that at that time, an appeals process was ongoing in the mustering process. It said the applicant was one of the appellants in that process. It said in the weeks preceding the Joint Committee request, the Department had received a large volume of correspondence from the applicant and other parties concerning its handling of the applicant’s reasonable accommodation request.

The Department added that prior to providing the Information Note to the Joint Committee, care was taken to ensure that the document contained only necessary information, that it contained no personal information and that any anonymised information contained in the document complied with the EU Data Protection Regulation (GDPR). It said that as Parliamentary Questions had been tabled about the issue of disability accommodation by members of the Joint Committee, and as inaccurate information on the making and handling of an accommodation request had been placed into the public domain, it considered that a comprehensive submission on the mustering process should include accurate information on that matter.

The Department further said it considered there was a lawful basis and a public interest in the provision of information to the Joint Committee and, given that the document was to be placed into the public domain, care was taken to include only necessary and proportionate information. It said it was of the view that providing accurate information on the mustering process and the handling of the accommodation request was in the public interest for a number of reasons, including that there would be accountability to the Joint Committee in how the mustering process was conducted, including how an accommodation request was handled, enabling further scrutiny by the Joint Committee of the decisions taken.

The Department argued that the applicant is not identifiable from the Information Note and that he had not met the onus of showing that the information at issue is personal information for the purposes of the Act. It argued that the only way in which a person reading the Information Note could surmise that the accommodation request mentioned in the record may have been made by the applicant, would be if that person had been provided this information by the applicant, or by a person to whom the applicant had provided that information.

On the other hand, the applicant argued, among other things, that “the Roster is a small community” and that he is readily identifiable to the community in the Information Note. He also said he sought parliamentary assistance and he argued that it will be apparent to the Deputies and Senators who were involved in his case that the relevant part of the Information Note refers to him.

The relevant part of the Information Note states that an applicant for selection to be included on the election observation roster requested, as part of an appeal, a reasonable accommodation on grounds of a disability on a particular date. It contains brief details of that applicant’s assertions that a request for reasonable accommodation had been attached to his original application and of the reasons why the Department found that no such accommodation had been sought at that stage in the process.

The question I must consider is whether that information contains sufficient details to comprise personal information about an identifiable individual. In my view, it does not, nor has it been argued that there is other publicly available information relating to the applicant that might allow a reader of the Information Note to establish the identity of the applicant referred to in the Note.

I consider that the information contained in the Information Note is not sufficiently detailed such that the applicant will be readily identifiable to the members of what he describes as the roster community, as he asserts. It contains nothing about the nature of the accommodation sought or the reason why it was sought.

I note that the Department received 395 applications for selection. It was open to any and all such applicants to apply for a reasonable accommodation. Even if I accept that the applicant is sufficiently known to the roster community such that he would be identified as a possible applicant for a reasonable accommodation, this does not mean that the application for accommodation mentioned in the Information Note would necessarily have come from him.

Furthermore, while it may well be the case that that it will be apparent to the Deputies and Senators who were involved in his case that the relevant part of the Information Note refers to him, I do not accept that this, of itself, means that the relevant information can be properly classified, for the purposes of section 9, as personal information relating to an identifiable individual.

For the purposes of section 9, the fact that an individual may be able to identify certain information as being about him or herself does not mean that the information is personal information about an identifiable individual. Similarly, the fact that other individuals who have been made aware of the information by the individual in question may be able to identify that information as being about the individual does not, in my view, mean that it should be regarded as personal information about an identifiable individual for the purposes of section 9. In my view, what is relevant for the purposes of section 9 is whether an individual is identifiable to any party other than those s/he has already made aware of the information at issue.

In this case, it seems to me that no individual who was not already aware of the details relating to the applicant’s request for a reasonable accommodation could reasonably determine that the relevant information contained in the Information Note relates to the applicant. In such circumstances, I cannot accept that the information at issue in this case is personal information relating to the applicant as an identifiable individual for the purposes of section 9.

In summary, therefore, I find that applicant is not entitled to apply for an amendment of the information at issue on the ground that it is not personal information relating to an identifiable individual, as required by section 9.

Even if I am wrong on this point, I am satisfied that the applicant has not shown that the information at issue is, on the balance of probabilities, incomplete, incorrect or misleading. The applicant argued that he included his request for a reasonable accommodation with his initial application for inclusion on the Roster, and not only at appeal stage as the Information Note suggests.

The Department maintained that it did not receive such an attachment. I note that in a letter dated 14 February 2019 to the applicant, it described the steps it took to investigate the matter and the basis for its finding that no such attachment was submitted. In summary, it stated that its ICT Unit conducted a forensic search to determine if it was possible that the attachment alleged to have been included with the original application could have been blocked in its systems for any reason and whether it had been sent to any email addresses maintained by the Department in the period leading up to the launch of the roster selection process.

The Department said the ICT Unit confirmed that the only email that any departmental address received on the relevant date (18 August 2018) from the applicant’s email address was the email containing his application form and that the application form was the only attachment. It said the email containing the application was scanned as clean by the Department’s anti-virus software and that consequently, no material was blocked or stripped from that email.

While the applicant disputes the Department’s evidence, he has not presented any evidence to support his contention that he did, indeed, include the request for reasonable accommodation with his application form. In his submission to my Office, he suggested that “specimen evidence” showed that a disability request was attached to the original application, but he did not produce such evidence. He argued that he has had a long standing problem with the relevant section within the Department regarding receipt of attachments and emails not being uploaded, which he attributes to his disability software. He suggested that as a consequence, attachments are wrongly identified by the Department’s systems as malware and he offered several examples where emails were quarantined and where no further action was taken. While I have no reason to dispute the applicant’s assertions that he has had such difficulties in the past, I note that the Department took specific steps to satisfy itself that no such quarantine issues arose in this case.

In conclusion, therefore, I find that the applicant has not shown that the information at issue is, on the balance of probabilities, incomplete, incorrect or misleading and that the Department was justified in refusing to amend the Information Note in question.

For the sake of completeness, I would like to comment upon the fact that the Department has not attached the section 9 application to the record at issue. Under section 9(4) of the Act, if an application for amendment of a record is refused, the body must attach to the record concerned a copy of the application or, if that is not practicable, a notation indicating that the application has been made. I take this requirement as applying in circumstances where a public body has refused to amend personal information contained in a record. It seems to me that the purpose of the provision is to inform any person reading a record containing personal information that the person to whom the personal information relates considers it to be incomplete, incorrect, or misleading. In light of my finding that the record at issue in this case does not contain personal information relating to the applicant, I find that the requirement set out in section 9(4) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby find that the Department was justified in refusing the applicant’s request under section 9 for an amendment of an Information Note it published in relation to the election observation roster on the ground that no right of amendment exists.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.